Eaton v. Burke

• Decision Date: 25 July 1890
• Citation: 22 A. 452,66 N.H. 306
• Court: New Hampshire Supreme Court
• Parties: EATON v. BURKE et al.

22 A. 452

66 N.H. 306

EATON

v. BURKE et al.

Supreme Court of New Hampshire. Hillsborough.

July 25, 1890.

Petition of mandamus by Nathaniel Eaton against Charles H. Burke, mayor, and P. J. Reynolds and F. M. Farley, street commissioners, of the city of Nashua.

At the annual election held in the city of Nashua in November, 1889, the plaintiff was duly chosen by the people, and by general ticket, street commissioner to superintend the streets, roads, and bridges of the city, under the provisions of chapter 248, Laws 1889, providing for a street commissioner, and was duly notified of his election, appeared and took the oath of office prescribed by law, and undertook to enter upon the discharge of the duties of the office, and has ever since endeavored so to do; but the defendants have refused, and still refuse, to recognize his authority as street commissioner, or to deliver to him the tools, implements, and property of the city used in the making and repair of streets, roads, and bridges. The legality of the plaintiff's election as street commissioner, under the statute of 1889; his formal qualification and readiness to enter upon the discharge of the duties of superintending the streets, roads, and bridges of the city; his demand for the possession of the tools and property used in the street department of the city; and the refusal of the defendants to recognize his claim or authority,—are not questioned. The defendants Reynolds and Farley claim to hold the office and exercise the authority of street commissioners, respectively, in districts numbered 3 and 5, in the city, by virtue of an election by the city councils prior to the passage of the act of 1889 G. B. French and Jeremiah Smith, for plaintiff.

Bingham & Mitchell and J. J. Doyle, for defendants.

SMITH, J. In 1889 the legislature established the office of "street commissioner" of the city of Nashua, the incumbent to be chosen by the people and by general ticket at the annual election in November. Laws 1889, c. 248. At the annual election in 1889 the plaintiff was chosen to that office, was declared elected, took the oath of office, and has been ready and willing to discharge its duties from the beginning of the present municipal year in January. There is no dispute about his election. No other person claims the office. He is prevented from entering upon and discharging his official duties by the defendant Burke, mayor of the city, and the defendants Reynolds and Farley, former street commissioners, respectively, of two districts in the city. He prays that they be commanded to deliver up to him the keys of the buildings where the tools and implements used upon the streets are kept, and to quit interference with him in the discharge of his duties us street commissioner. The petition presents a question, not of title to the office, but whether the plaintiff shall be permitted to perform its duties without interference. Mandamus, and not quo warranto, is the proper remedy. Kimball v. Lamprey, 19 N. H. 215; Kimball v. Marshall, 44 N. H. 465; Strong's Petition, 20 Pick. 484; Conlin v. Aldrich, 98 Mass. 557; High, Extr. Rem. § 73; 2 Dill. Mun. Corp. (3d Ed.) § 842.

The charter of the city empowered the city councils to elect annually, among other officers, "a commissioner of streets and highways." Laws 1853, c. 1404, § 22. In 1878 the city councils were empowered to elect in convention, among other officers, "street commissioners." Laws 1878, c. 165, § 11. Neither in the charter nor in the act of 1878 were the duties of the office defined, except so far as they may be inferred from the name. The city councils, after the passage of the act of 1878, divided the city into 10 highway districts, and provided for the election of a "street commissioner" for each district. The ordinance provided, further, as follows: "It shall be the duty of each commissioner, under the general supervision of the mayor and aldermen, to superintend the streets, roads, and sidewalks, lanes, bridges, public walks and squares of his district; to attend the making, widening, or alteration of the high ways in the same; to cause the same to be kept in good, sufficient, and suitable repair; and to make all contracts for labor and materials that may be necessary; to superintend the building or repair of any sewers or drains therein; and to make all necessary contracts for the same, such contracts to be in all cases subject to the approval of the mayor and aldermen. The said commissioner in his district shall make all necessary arrangements for keeping the streets clear and in good order, and shall give notice to the mayor and city marshal in case of any nuisance, obstruction, or encroachment in or upon any of the streets, roads, sidewalks, bridges, public walks or squares." Rev. Ord. Nashua, (Ed. 1884,) c. 9, § 1; Id. c. 11, §1. The street commissioners are authorized, under the direction of the committee on sewers and drains, to take the general care and superintendence of the sewers in their several districts, to take charge of repairs upon the same, and, with the consent of the committee, make contracts for materials and supplies for the same. Id.c.10, §3. In the statute of 1889 the duties of street commissioners are defined. The language of the statute is, "a street commissioner to superintend the streets, roads, and bridges of said city." There is no express mention of the repeal of any former statute, or of any statute or statutes inconsistent with its provisions. It is claimed on the part of the plaintiff that the former statutes are repealed by implication. The defendants contend that the act of 1889 is not inconsistent with the charter nor with the act of 1878, but is auxiliary to the same; that the duties of the office are not defined in the act; that the right to define and limit the powers of street commissioner is vested by the charter in the city councils, and, until defined by ordinance, the plaintiff has no authority to perform official acts, and is not entitled to recognition as an officer; that the street commissioner is a subordinate officer, performing his duties under the supervision of the mayor; and that there is no evidence that the legislature intended to effect a change in this respect. The question is thus raised whether the statute of 1889 is so inconsistent with section 22, c. 1404, Laws 1853, and section 11, c. 165, Laws 1878, in relation to the election of street commissioners, that a repeal of the older statutes is necessarily implied. By the terms "commissioner of streets and highways," (Charter, § 22,) "street commissioners," (Act 1878,) and "street commissioner," (Act 1889,) are meant an officer charged with the powers and duties of highway surveyor, except as enlarged by the greater necessities of a larger municipality. The office existed in England before the settlement of this state. St. 2 & 3 P. & M. c. 8; 5 Eliz. c. 13; 14 Car. H. c. 6; 7 Geo. III. c. 42; 13 Geo. III. c. 78; Com. Dig. Chimin, c. 4; Denniston v. Clark, 125 Mass. 216, 223. Surveyors; were authorized to be chosen in each town by some of the earliest acts of the province and state. 1 Pro v. Papers, 403; Laws N. H. 1670-80; Laws N. H. 1791, p. 180; Laws N. H. 1805, p. 196; Laws N. H. 1815, p. 387; Laws N. H. 1830, p. 578; Rev. St. c. 34, § 5; Gen. St. c. 66, § 5; Id. c. 72, § 5. He is given authority to require each person in his list upon notice to work out his tax; to allow him for his labor, and to levy his tax by distress, if the tax-payer does not attend to labor; to work out a portion of his list in another district, when necessary; to purchase materials for repairs at the expense of the town; and to remove gravel and other materials from one part of his district to another for the purpose of repairs. Gen. Laws, c. 72, §§ 7-9, 11, 13,14, 16, 17. Except in these particulars, the powers and duties of highway surveyors are not defined by statute. The office is recognized as an ancient one, and its duties as well known and understood.

In Palmer v. Carroll, 24 N. H. 314, 316, Perley, J., said: "He [the surveyor] is bound, under this responsibility, to make necessary repairs on roads and bridges within his district. He is obliged to decide and judge at his own peril whether the repairs are necessary. His duty in this respect is not merely ministerial. It is not a defined, specific thing which he is required to do; but the law obliges him to decide for himself whether the repairs are necessary, and, of course, he is made the judge of that question. Within the limits of the means which the law places in his hands he is intrusted with a discretion to make such, repairs as he may deem to be necessary! In this matter he has no guide but his own judgment; he does not act under the direction of any other public officer. If he exercises his best judgment faithfully and diligently, within the limits of his legal authority, the town are bound by his acts. Any other rule which would subject him, when he claims under the law repayment of the money which he has disbursed for the town, to have his best judgment revised and reversed in a mere matter of opinion, would be extremely unreasonable." "Highway surveyors, it has been holden, are not the agents of the town. They are public officers, whose duties are prescribed bylaw. Their authority is not derived from the town, but from the statute. They are not under the control of the town. Their powers cannot be enlarged or abridged by any action of the town, and what they do or omit to do, in the proper exercise of their authority, is done or omitted because the law enjoins and prescribes their duties, independent eutirely of municipal control or authority." Hardy v. Keene, 52 N. H. 370, 377. See, also, Ball v. Winchester, 32 N. H. 435; Waldron v. Berry, 51 N. H. 136; Wells v. Goffstown, 16 N. H. 53; Dow v. Epping, 48 N. H. 75. The town has a remedy over against the surveyor through whose fault or neglect damage happens to a traveler. Gen. Laws,...